The Employment Appeal Tribunal case of Henderson v Connect (South Tyneside) is not very likely to be reported as there is not much new law in it. However, it is a nice example of a judgment which provides a useful survey of the existing authorities, in an area in which many of them are quite old and not all of them are particularly clear. It concerns the tricky issues that arise when an employer sacks someone at the behest of a client, especially if the client does not have good grounds for making such a demand.

The background is the seminal case of Devis v Atkins, which established that the fairness of a dismissal does not depend on justice being done. A dismissal can be unfair even where justice is done (although it may be equitable to reduce the compensation awarded) but, conversely, a dismissal can be fair notwithstanding the fact that there is injustice, such as when the employer has a reasonable belief in the guilt of an employee who is, in fact, innocent. The issue is whether the employer acted reasonably.

It follows that, if a third party has a contract with an employer which gives it a veto on who carries out work for it, and the employer does everything possible to mitigate the effects of such a decision, a dismissal will be fair. So said the Court of Appeal in Dobie v Burns. Unfortunately, however, the Court of Appeal did not quite say this but rather it said that the injustice to the employee must be taken into account when considering the fairness of the dismissal and it appeared to distinguish Devis in this respect. This is ambiguous. Although it seems to have always been interpreted in accordance with the first sentence of this paragraph, which is also supported by the EAT decision in the same case, there is another possible interpretation, which is that a dismissal which results in injustice to an employee can be unfair even in circumstances where the employer has done everything that can be done to avoid it.

Henderson rejects the latter approach although, strictly speaking, it does not rule upon the matter because it was not argued before it. In any event, there is another point from Dobie v Burns which does remain outstanding, which is the suggestion of the EAT that, where a employer has a client with a right of veto, this right should be expressly incorporated into the contracts of its employees or else a dismissal might be rendered unfair. This is something which does go directly to the reasonableness of the actions of the employer and so it could be something which tribunals will want to take into account.